This blog on Texas education contains posts on accountability, testing, college readiness, dropouts, bilingual education, immigration, school finance, race, class, and gender issues with additional focus at the national level.

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Friday, June 16, 2006

I primarily take issue with Professor Armor's statement that "We have racially imbalanced neighborhoods and cities based on where people choose to live. What's wrong with racially imbalanced schools?" For poor, and even middle-class families on a fixed income, there are limits to the choices that they can make. -Angela

June 11, 2006

Ideas & TrendsPerhaps Not All Affirmative Action Is Created EqualBy JEFFREY ROSEN --NEW YORK TIMES

Washington

NOW that the Supreme Court has agreed to hear two cases challenging racialbalancing in public schools, some conservatives hope the end of affirmativeaction is near.

After all, they say, why would the Supreme Court suddenly agree to hearcases about racial balancing in Seattleand Louisvillewhen the court ? withSandra Day O'Connor still serving ? refused last December to hear a similarcase from Massachusetts? It must be, the thinking goes, that the court,with two new and more conservative justices, John G. Roberts Jr. and SamuelA. Alito Jr., wants to overturn affirmative action.

That optimism may be premature, and not because there is a hidden liberalstreak on the court. Instead, there is a vigorous debate among prominentRepublican judges and legal scholars about whether racial balancing inpublic schools is an acceptable form of affirmative action. Someconservatives believe that racial balancing plans, while not colorblind,are still constitutional.

The unexpected fissures among conservatives about how colorblind theConstitution should be suggest that certain forms of affirmative actionmight be more acceptable to conservatives than liberals had feared.

The Seattleand Louisvillecases, which the Supreme Court will hear nextfall, involve challenges to plans known as "managed choice" or "openchoice." In Seattle, parents can apply to send their children to any publichigh school in the district.

If a school is oversubscribed, students are chosen based on a number of"tie-breakers," including racial targets designed to ensure that eachschool's racial makeup doesn't differ by more than 15 percent from theracial composition of the Seattle public schools as a whole.

Last October, no one was surprised when the famously liberal United StatesCourt of Appeals for the Ninth Circuit upheld the Seattleplan. It cited a2003 Supreme Court opinion, by Justice O'Connor, which held that classroomdiversity was a compelling governmental interest for law schools anduniversities.

But it was eye-opening that Judge Alex Kozinski, a conservative libertarianon the Ninth Circuit, wrote an unexpected concurring opinion. "That astudent is denied the school of his choice may be disappointing, but itcarries no racial stigma and says nothing at all about that individual'saptitude or ability," he wrote.

And Judge Kozinski quoted the opinion of Chief Judge Michael Boudin of theUnited States Court of Appeals for the First Circuit, another Republicanjudge, who upheld the use of racial balancing in a Massachusettsschoolchoice plan. Unlike "modern affirmative action," Judge Boudin had written,these plans do not "seek to give one racial group an edge over another."

Some conservative scholars suggest that there may be significantdifferences between racial balancing for public elementary and high schoolsand racial preferences for competitive public universities.

"When you're talking about public schools, everybody's got to go somewhere,and it's not as if some schools are necessarily better than others," saidCharles Fried, a conservative law professor at Harvard. "At some point, thegovernment has to have some basis for breaking the tie."

Professor Fried said he had not made up his mind on the issue. "I thinkRoberts and Alito are both men who are open to arguments, and I would trustthem to think long and hard about this," he said.

Conservatives have also long emphasized the importance of deferring tolocal school officials, a reaction in part to judicially imposed busingprograms.

In the Seattleand Louisvillecases, the plans were designed by localpoliticians.

"This is not the result of some liberal master plan; it was adopted fromthe ground up, " said Samuel Issacharoff, a liberal legal scholar atColumbia LawSchool. Judicial deference is as deeply held a conservativeprinciple as the importance of a colorblind society, and conservativejudges and activists are conducting a vigorous internal debate about howthese principles should be reconciled.

Last year, for example, the Supreme Court, in another opinion by JusticeO'Connor, struck down California's policy of racially segregating newprisoners to prevent gang violence. Justice Clarence Thomas and JusticeAntonin Scalia, ordinarily fierce champions of colorblind policies, arguedthat an exception should be made in this case because of the importance ofdeferring to the expertise of local prison officials.

Opponents of affirmative action don't buy conservative arguments thatracial balancing is acceptable. Parents don't view all public schools asequal, they argue, so racial tie-breakers force some parents to send theirchildren to worse schools farther from home because of their race.

"In some ways, the damage may be greater than in the university context,since this may limit the ability of black families to escape inferiorschools by transferring to schools where the authorities deem there to betoo many blacks," says Peter H. Schuck of Yale Law School, author of"Diversity in America," a prominent critique of affirmative action.

In the Seattlecase, the conservative dissenting judges wrote that theeducational benefits of diversity for university students were less obviousfor lower-school students. The dissenters quoted David J. Armor, a GeorgeMason professor who has reported finding little connection between racialintegration and student achievement.

"Where we have had very substantial long-term desegregation, we did notfind the achievement gap changing significantly," Mr. Armor said in aninterview. "I did find a modest association for math but not reading interms of racial composition and achievement, but there's a big statevariation."

Professor Armor estimated that "at least dozens or maybe hundreds of schooldistricts still use race in some way" and said he hoped that the SupremeCourt would put an end to all race-conscious assignment plans. "We haveracially imbalanced neighborhoods and cities based on where people chooseto live. What's wrong with racially imbalanced schools?"

IF the court agrees with him, it might require districts to consider"race-neutral alternatives," like a lottery, to decide which students gainadmission to popular schools. But given segregated housing patterns, thatmight mean the end of integration.

Chief Justice Roberts, in his first term, has shown a skill in persuadinghis colleagues to join unanimous opinions decided on narrow grounds. Therace cases may test his leadership abilities more than any he hasconfronted so far. And the fact that conservatives disagree so vigorouslyabout how to apply the principle of colorblindness in different contextsmakes the outcome especially hard to predict.

Jeffrey Rosen's latestbook is "The Most Democratic Branch: How the CourtsServe America."